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07-3677
07-3900
__________________________________
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
__________________________________
JAMES L. ALEXANDER, et al.,
Plaintiffs-Appellees-Cross-Appellants,
v.
THOMAS J. CAHILL, et al.,
Defendants-Appellants-Cross-Appellees.
__________________________________
On Appeal from the United States District Court
for the Northern District of New York
__________________________________
APPELLEE’S PRINCIPAL AND RESPONSE BRIEF
__________________________________
Gregory A. Beck
Brian Wolfman
Public Citizen Litigation Group
1600 20th Street NW
Washington, DC 20009
Phone: (202) 588-1000
Fax: (202) 588-7795
Email:[email protected]
[email protected]
February 1, 2008
Counsel for Appellees
CORPORATE DISCLOSURE STATEMENT
Plaintiff Public Citizen, Inc. certifies that it has no parent corporation and no
publicly held corporation owns ten percent or more of its stock.
/s/Gregory A. Beck
Gregory A. Beck
TABLE OF CONTENTS
CORPORATE DISCLOSURE STATEMENT ......................................................... i
TABLE OF CONTENTS.......................................................................................... ii
TABLE OF AUTHORITIES ................................................................................... iv
STATEMENT OF JURISDICTION..........................................................................1
STATEMENT OF THE ISSUES...............................................................................1
RELEVANT STATUTES .........................................................................................2
STATEMENT OF THE CASE..................................................................................3
I.
Nature of the Case .................................................................................4
II.
Statement of Facts .................................................................................5
A. The Task Force on Lawyer Advertising .........................................5
B. The Committee of the Administrative Board of Courts .................6
C. The Amended Advertising Rules....................................................7
D. Plaintiffs James L. Alexander and Alexander & Catalano ...........10
E. Plaintiff Public Citizen..................................................................12
F. The Case Below ............................................................................13
STANDARD OF REVIEW .....................................................................................16
SUMMARY OF THE ARGUMENT ......................................................................16
ARGUMENT ...........................................................................................................21
ii
I.
The First Amendment Protects Commercial Speech
Regardless of Whether the State Considers It “Relevant” or
“Verifiable.” ........................................................................................22
A. “Irrelevant” Commercial Speech ..................................................23
B. “Unverifiable” Commercial Speech..............................................27
C. No Authority Supports the State’s Position. .................................29
D. The State’s Proposed Test Would Be Unworkable and
Incompatible with the Central Hudson Framework. ....................35
II.
The Challenged Rules Unconstitutionally Restrict the
Content of Commercial Speech...........................................................39
A. No Valid Interests Justify the State’s Restrictions on
Speech. ..........................................................................................40
B. The Rules Do Not Advance the State’s Claimed Interests. ..........45
C. The Rules Are Not Narrowly Drawn. ...........................................54
III.
The Thirty-Day Moratorium on Communications to
Potential Clients in Personal Injury and Wrongful Death
Cases Is Unconstitutional. ...................................................................56
A. The State Has Not Shown a Need for the Moratorium
Rule. ..............................................................................................57
B. The State’s Restriction Will Not Mitigate the Purported
Harm..............................................................................................59
C. The Rule Is Not Narrowly Drawn.................................................63
CONCLUSION........................................................................................................65
CERTIFICATE OF COMPLIANCE.......................................................................66
CERTIFICATE OF SERVICE ................................................................................67
iii
TABLE OF AUTHORITIES
Cases
44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996) .............................. 45, 64
ACLU v. Miller, 977 F. Supp. 1228 (N.D. Ga. 1997)..............................................50
Amendments to Rules Regulating the Florida Bar, 762 So. 2d 392 (Fla.
1999). ...................................................................................................................64
Amidon v. Student Association, 508 F.3d 94 (2d Cir. 2007) ...................................16
Bad Frog Brewery v. New York State Liquor Authority, 134 F.3d 87 (2d
Cir. 1998) ..................................................................................................... passim
Bates v. State Bar of Arizona, 433 U.S. 350 (1977) ............................. 25, 27, 42, 44
Board of Trustees v. Fox, 492 U.S. 469 (1989) .......................................................54
Bolger v. Youngs Drug Products Corp., 463 U.S. 60 (1983) ..................................42
Carey v. Brown, 447 U.S. 455 (1980) .....................................................................43
Central Hudson Gas & Electric Corp. v. Public Service Commission,
447 U.S. 557 (1980) ..................................................................................... passim
Chambers v. Stengel, 256 F.3d 397 (6th Cir. 2001) ................................................60
Committee on Professional Ethics v. Humphrey, 377 N.W.2d 643 (Iowa
1985).............................................................................................................. 29, 30
Edenfield v. Fane, 507 U.S. 761 (1993) .......................................................... passim
Farrin v. Thigpen, 173 F. Supp. 2d 427 (M.D.N.C. 2001)......................................32
Ficker v. Curran, 119 F.3d 1150 (4th Cir. 1997) ....................................................43
Florida Bar v. Pape, 918 So. 2d 240 (Fla. 2005) ....................................... 18, 33, 34
Florida Bar v. Went For It, Inc., 525 U.S. 618 (1995).................................... passim
iv
Friedman v. Rogers, 440 U.S. 1 (1979)............................................................ 49, 50
Frisby v. Schultz, 487 U.S. 474 (1988) ....................................................................43
FTC v. Verity Int’l, Ltd., 443 F.3d 48 (2d Cir. 2006) ..............................................40
Greater New Orleans Broad. Ass’n, Inc. v. United States, 527 U.S. 173
(1999) ...................................................................................................................31
Grievance Committee v. Trantolo, 470 A.2d 228 (Conn. 1984) .............................36
Ibanez v. Florida Department of Business & Professional Regulation,
512 U.S. 136 (1994) .................................................................................. 4, 23, 41
In re Felmeister & Isaacs, 518 A.2d 188 (N.J. 1986) .............................................33
In re RMJ, 455 U.S. 191 (1982)............................................................ 26, 27, 41, 55
In re Shapiro, 225 A.D.2d 215 (N.Y. App. Div. 1996)...........................................43
In re Von Wiegen, 63 N.Y.2d 163 (N.Y. 1984) .......................................................51
In re Zang, 741 P.2d 267 (Ariz. 1987).............................................................. 32, 33
Mandel v. Bradley, 432 U.S. 173 (1977) .......................................................... 29, 31
Michel v. Bare, 230 F. Supp. 2d 1147 (D. Nev. 2002) ..................................... 49, 50
Mr. Chow of N.Y. v. Ste. Jour Azur S.A., 759 F.2d 219 (2d Cir. 1985) ...................29
N.Y. State Ass’n of Realtors, Inc. v. Shaffer, 27 F.3d 834 (2d Cir. 1994). ....... 39, 54
Peel v. Attorney Registration & Disciplinary Comm’n, 496 U.S. 91
(1990) ...................................................................................................... 28, 40, 41
Pete’s Brewing Co. v. Whitehead, 19 F. Supp. 2d 1004 (W.D. Mo. 1998).............50
Piazza’s Seafood World, LLC v. Odom, 448 F.3d 744 (5th Cir. 2006) ...................50
Pizza Hut, Inc. v. Papa John’s Int’l, Inc., 227 F.3d 489 (5th Cir. 2000) ......... 28, 38
Sambo’s Restaurants v. Ann Arbor, 663 F.2d 686 (6th Cir. 1981) .........................50
v
Schwartz v. Welch, 890 F. Supp. 565 (S.D. Miss. 1995).........................................31
Shapero v. Kentucky Bar Association, 486 U.S. 466 (1988)........................... passim
Texans Against Censorship, Inc. v. State Bar of Texas, 888 F. Supp.
1328 (E.D. Tex. 1995) .........................................................................................33
Texas v. Johnson, 491 U.S. 397 (1989). ..................................................................42
Tillman v. Miller, 133 F.3d 1402 (11th Cir. 1998) ..................................................31
United States v. Edge Broadcasting Co., 509 U.S. 418 (1993)...............................31
Virginia State Board of Pharmacy v. Virginia Citizens Consumer
Council, Inc., 425 U.S. 748 (1976) ......................................................... 24, 35, 42
Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985).................. passim
Statutes and Rules
22 N.Y.C.R.R. § 1200.6(a) ............................................................................... 53, 55
22 N.Y.C.R.R. § 1200.6(c)(1)............................................................................. 9, 14
22 N.Y.C.R.R. § 1200.6(c)(3)................................................................. 9, 12, 14, 15
22 N.Y.C.R.R. § 1200.6(c)(5)............................................................... 10, 11, 14, 47
22 N.Y.C.R.R. § 1200.6(c)(7)....................................................................... 9, 11, 14
22 N.Y.C.R.R. § 1200.7(e) ......................................................................................15
22 N.Y.C.R.R. § 1200.8.............................................................................................2
22 N.Y.C.R.R. § 1200.8(g) ................................................................................. 9, 56
22 N.Y.C.R.R. § 1200.20.........................................................................................53
22 N.Y.C.R.R. § 1200.41-a............................................................................. 3, 9, 56
28 U.S.C. § 1291........................................................................................................1
vi
28 U.S.C. § 1331........................................................................................................1
28 U.S.C. § 1343........................................................................................................1
49 U.S.C. § 1136......................................................................................................62
Federal Rule of Appellate Procedure 4(a)(1)(A) .......................................................1
Federal Rule of Appellate Procedure 4(a)(3).............................................................1
Other Authorities
Public Images and the Irresistible Aristotelian Impulse, 9 Geo J. Legal
Ethics 325 (1996) .................................................................................................45
The Supreme Court, 1984 Term, 99 Harv. L. Rev. 193 (1985) ...............................36
vii
STATEMENT OF JURISDICTION
The district court had jurisdiction under 28 U.S.C. §§ 1331 and 1343. On
July 23, 2007, the court entered an order granting in part and denying in part
plaintiffs’ motion for summary judgment, and granting in part and denying in part
defendants’ cross-motion for summary judgment. A. 227-56. On the same day, the
court entered a judgment consistent with that order that disposed of all issues in the
case other than the issue of attorneys’ fees. A. 258-59. Defendants filed a timely
notice of appeal pursuant to Federal Rule of Appellate Procedure 4(a)(1)(A) on
August 22, 2007. A. 261. Plaintiffs then filed a timely notice of cross-appeal
pursuant to Federal Rule of Appellate Procedure 4(a)(3) on August 29, 2007. A.
264. This Court has jurisdiction under 28 U.S.C. § 1291.
STATEMENT OF THE ISSUES
Case No. 07-3677
1.
Whether the First Amendment allows a state to restrict common
advertising techniques that it deems to be “irrelevant” or “unverifiable” without
any evidence that the advertisements are misleading or otherwise harmful to
consumers or, assuming that such harms exist, that the restrictions alleviate them in
a material way.
2.
Whether the state satisfied its burden of justifying its newly adopted
restrictions on lawyer advertising under Central Hudson Gas & Electric Corp. v.
Public Service Commission, 447 U.S. 557 (1980), where the state submitted no
evidence in support of the restrictions.
Case No. 07-3900
3.
Whether the district court erred in holding that the state’s thirty-day
moratorium on attorney communications to potential clients in personal injury and
wrongful death cases survives constitutional scrutiny under Central Hudson, where
there is no evidence in the record in support of the moratorium.
RELEVANT STATUTES
22 N.Y.C.R.R. § 1200.8
Solicitation and Recommendation of Professional Employment
. . .
(b) For purposes of this section “solicitation” means any
advertisement initiated by or on behalf of a lawyer or law firm that is
directed to, or targeted at, a specific recipient or group of recipients,
or their family members or legal representatives, the primary purpose
of which is the retention of the lawyer or law firm, and a significant
motive for which is pecuniary gain. It does not include a proposal or
other writing prepared and delivered in response to a specific request
of a prospective client.
. . .
(g) No solicitation relating to a specific incident involving
potential claims for personal injury or wrongful death shall be
disseminated before the 30th day after the date of the incident, unless
a filing must be made within 30 days of the incident as a legal
prerequisite to the particular claim, in which case no unsolicited
communication shall be made before the 15th day after the date of the
incident.
2
22 N.Y.C.R.R. § 1200.41-a
Communication After Incidents Involving Personal Injury or
Wrongful Death
(a) In the event of an incident involving potential claims for
personal injury or wrongful death, no unsolicited communication shall
be made to an individual injured in the incident or to a family member
or legal representative of such an individual, by a lawyer or law firm,
or by any associate, agent, employee or other representative of a
lawyer or law firm, seeking to represent the injured individual or legal
representative thereof in potential litigation or in a proceeding arising
out of the incident before the 30th day after the date of the incident,
unless a filing must be made within 30 days of the incident as a legal
prerequisite to the particular claim, in which case no unsolicited
communication shall be made before the 15th day after the date of the
incident. (b) This provision limiting contact with an injured individual
or the legal representative thereof applies as well to lawyers or law
firms or any associate, agent, employee or other representative of a
lawyer or law firm who represent actual or potential defendants or
entities that may defend and/or indemnify said defendants.
(b) This provision limiting contact with an injured individual or
the legal representative thereof applies as well to lawyers or law firms
or any associate, agent, employee or other representative of a lawyer
or law firm who represent actual or potential defendants or entities
that may defend and/or indemnify said defendants.
STATEMENT OF THE CASE
“These new rules will help regulate lawyer advertising
so that consumers are protected against inappropriate
solicitations and potentially misleading ads . . . .”
-Statement of Chief Administrative Judge Jonathan
Lippman on behalf of the Presiding Justices of the
Appellate Division of the New York Supreme Court,
June 15, 2006
“If the protections afforded commercial speech are to
retain their force, we cannot allow rote invocation of the
3
words ‘potentially misleading’ to supplant the [state’s]
burden to demonstrate that the harms it recites are real
and that its restriction will in fact alleviate them to a
material degree.”
-Ibanez v. Fla. Dep’t of Bus. & Prof’l Reg.,
512 U.S. 136, 146 (1994)
I.
Nature of the Case
This case involves a First Amendment challenge to the amended New York
Code of Professional Responsibility, brought against New York’s attorney
disciplinary authorities by James L. Alexander, the Alexander & Catalano law
firm, and Public Citizen, a nonprofit consumer-advocacy organization. A. 16-30.
The amended rules, which went into effect on February 1, 2007, enacted sweeping
new restrictions on lawyer advertising that forced Alexander & Catalano to pull
many of its advertisements off the air and to abandon its slogan “the heavy hitters.”
A. 47-48 ¶ 15. Plaintiffs sued for a declaratory judgment that the amended rules
were unconstitutional restrictions on both commercial and noncommercial speech,
and for a preliminary and permanent injunction against enforcement of the rules.
A. 29-30. On cross-motions for summary judgment, the district court held several
of the restrictions unconstitutional and permanently enjoined their enforcement. A.
237-45. However, the court upheld a rule that created a thirty-day moratorium on
communications to potential clients in personal injury and wrongful death cases. A.
248-54.
4
II.
Statement of Facts
A.
The Task Force on Lawyer Advertising
In October, 2005, the New York State Bar Association’s Task Force on
Lawyer Advertising issued a report and recommendation proposing amendments to
the advertising provisions of the New York Code of Professional Responsibility.
A. 51-179. Developed by the task force over the previous four months, the report
set forth detailed rule changes to address what the task force claimed were
misleading lawyer advertising practices and practices that the task force thought
would “diminish the Bar’s professionalism.” A. 56.
In developing its recommendations, the task force reviewed the existing
lawyer advertising rules in New York and other jurisdictions, First Amendment
case law regarding lawyer advertising, and about 250 randomly selected
advertisements that had previously been distributed in the state. A. 60-61. Aside
from its review of the advertisements, the task force did not conduct any empirical
research or surveys to discover what sorts of advertising techniques are likely to
mislead the public or to diminish the professionalism of the bar. A. 100-02.
The task force’s report recommended a series of revisions to the advertising
rules, all of which—with one exception—revolved around a central theme: The
state should not adopt new content-based restrictions on lawyer advertising, but
should instead require disclaimers on potentially misleading ads, step up
5
enforcement of existing rules, increase efforts to educate lawyers about the rules,
and conduct outreach efforts to educate the public about the legal system and the
role of lawyers. The one exception was the task force’s recommendation of a
moratorium on direct-mail solicitations to potential clients in accident or injury
cases for fifteen days following the accident or injury. A. 61-62. The task force
based this recommendation on its “belie[f] [that] the cooling off requirement would
be beneficial in removing a source of annoyance and offense to those already
troubled by an accident or similar occurrence” and by its observation that a similar
moratorium was upheld by the Supreme Court in Florida Bar v. Went For It, Inc.,
525 U.S. 618 (1995). A. 61-63. Aside from surveying the law of other
jurisdictions, the task force did not compile any evidence in support of the
moratorium rule. A. 61-63.
B.
The Committee of the Administrative Board of Courts
At the same time the task force was formulating its report, the New York
Administrative Board of Courts formed its own committee to review the state’s
advertising rules. A. 56, 223. The committee operated independently of the state
bar’s task force and did not issue any public reports or recommendations. A. 56.
There is no evidence in the record of what, if any, evidence the committee
considered or what amendments it suggested.
6
C.
The Amended Advertising Rules
In June 2006, the presiding justices of each of the four departments of the
Appellate Division of the New York Supreme Court approved for public comment
detailed and extensive amendments to the New York Code of Professional
Responsibility that a press release issued by the New York State Office of Court
Administration characterized as involving “sweeping new restrictions on lawyer
advertising.” A. 222. Among other things, the rules banned or regulated use of
actors, depictions of judges or courthouses, testimonials, celebrity spokespeople,
reenactments of events, and fictional scenes. Id. The proposed rules also restricted
use of “nicknames, monikers, mottos or trade names” that suggest an ability to
obtain results in a matter, Internet pop-up ads, and certain domain names for
lawyer websites. Id. In its press release, the administrative office stated that the
amendments were intended to protect consumers against “potentially misleading”
advertisements and to “benefit the bar by ensuring that the image of the legal
profession is maintained at the highest possible level.” A. 222-23. However, the
common thread among the proposed amendments is that they regulated or
prohibited many kinds of stock advertising techniques that are widespread in the
media and that consumers are used to seeing every day.
According to the press release, the rules were adopted as a result of
recommendations by both the court system’s own committee and the report of the
7
state bar’s task force on advertising. A. 223. There is no indication in the proposed
amendments, however, that they were influenced to any significant degree by the
task-force report. The most striking thing about the proposed rules is the stark
dissimilarity between the task force’s recommendations and the amendments
proposed by the courts. Although the task force had rejected new content-based
restrictions in favor of additional disclaimers, educational efforts, and tougher
enforcement of existing rules, the amendments enacted by the presiding justices
implemented detailed new regulations on the content of lawyer ads that were
among the most restrictive in the country.
Only one amendment relevant to this appeal bore any resemblance to the
recommendations of the task force: a moratorium on contact with victims and
victims’ families in personal injury and wrongful death cases. A. 61-63. But while
the task force had recommended a fifteen-day ban on such communications and
had limited the restriction to direct-mail solicitations, the proposed rules contained
a thirty-day restriction that covered all “communications,” a term that includes
advertisements in mass media like newspapers, television, and websites that do not
intrude on the privacy of consumers. A. 249 n.15.
Over the following five months, the courts received “numerous” comments
from the public on the amended rules. Defs.’ Br. at 6. Although the state asserts
that the presiding justices relied on these comments in formulating the final version
8
of the rules, id. at 5-6, the only comments in the record are those submitted by
plaintiff Public Citizen, which argued that the rules violated the First Amendment,
A. 189-217, and the Federal Trade Commission, which warned that the rules would
not benefit consumers and, in fact, could hurt them by making it more difficult to
find a lawyer and by stifling competition in the legal marketplace. A. 181-87.
After the comment period expired, the presiding justices announced final
revisions to the rules that moderated some of the restrictions, but left untouched
many provisions that were not part of the task force’s recommendations and that
dramatically restricted the ability of lawyers to advertise in the state. Among other
provisions, the justices retained rules prohibiting the use of “a nickname, moniker,
motto or trade name that implies an ability to obtain results in a matter,” 22
N.Y.C.R.R. § 1200.6(c)(7), portrayals of a judge, id. § 1200.6(c)(3), and
endorsements or testimonials by clients with regard to matters that are still
pending, id. § 1200.6(c)(1). The justices also retained the thirty-day prohibition on
communications to potential clients in personal injury and wrongful death cases.
Id. §§ 1200.8(g), 1200.41-a. And the justices added a new provision, not present in
either the proposed rules or the task-force report, that prohibited advertisements
that “rely on techniques to obtain attention that demonstrate a clear and intentional
lack of relevance to the selection of counsel, including the portrayal of lawyers
9
exhibiting characteristics clearly unrelated to legal competence.” Id.
§ 1200.6(c)(5).
D.
Plaintiffs James L. Alexander and Alexander & Catalano
Plaintiff James L. Alexander is a licensed attorney who has actively
practiced in New York for the past twenty-three years. A. 45 ¶ 1. He is the
managing partner of Alexander & Catalano LLC, a New York law firm with
offices in Syracuse and Rochester. A. 45 ¶ 1-2. The firm employs eight attorneys
representing clients in personal injury and wrongful death claims. A. 45 ¶ 2.
Alexander & Catalano communicates its services to the public through
broadcast media, print advertisements, and other forms of media. A. 45 ¶ 3. Over
the past ten years, the firm has developed a series of advertisements that have
brought it substantial name recognition within its market. A. 45 ¶ 3; A. 224
(selection of Alexander & Catalano’s television advertisements). These
advertisements feature commercials with dramatizations, comical scenes, and
special effects, which, for example, depict Alexander and his partner as giants
towering above local buildings, running to a client’s house so fast they appear as
blurs, jumping onto rooftops, and providing legal assistance to space aliens. A.
224. The advertisements also usually feature the firm’s slogan, “the heavy hitters,”
a phrase that the public in Alexander & Catalano’s market has come to associate
with the firm. A. 224.
10
When the final version of the amended rules was approved by the presiding
justices, Alexander & Catalano found that almost all of its advertisements—which
it had been running for years without complaint from state disciplinary
authorities—were suddenly prohibited in New York. A. 45-46 ¶¶ 3-4; A. 46 ¶ 6;
47-48 ¶ 15. All of Alexander & Catalano’s commercials containing dramatizations
and comedic sketches ran afoul of § 1200.6(c)(5) of the amended rules, which
prohibits “techniques to obtain attention that demonstrate a clear and intentional
lack of relevance to the selection of counsel, including the portrayal of lawyers
exhibiting characteristics clearly unrelated to legal competence.” § 1200.6(c)(7).
Many other common advertising devices appearing in the firm’s ads, such as
jingles and special effects, were also prohibited by this rule. A. 45 ¶ 3. Even a
television commercial showing a list of charities to which the firm has donated
appeared to violate the rule against attention-getting techniques, because this
advertisement brings attention to the firm and is not related to the firm’s legal
competence. A. 224.
In addition to the ban on attention-getting techniques, the amended rules’
new prohibition on depictions of judges prevented Alexander & Catalano from
running one of its advertisements that depicted a judge in the courtroom and stated
that the judge is there “to make sure [the trial] is fair.” A. 224. Moreover,
Alexander & Catalano could no longer use its slogan “the heavy hitters” because it
11
violated § 1200.6(c)(3)’s prohibition of nicknames, monikers, and mottos that
imply an ability to obtain results,” as did other slogans that frequently appear in the
firm’s advertisements, such as “think big” and “we’ll give you a big helping hand.”
A. 46 ¶ 6.
Alexander & Catalano’s ads, though at times silly, have been effective at
drawing clients to the firm and pose no risk of deception or other harm to
consumers. A. 46 ¶ 5, 6. Nevertheless, as a result of the amended rules, Alexander
& Catalano was forced to abandon its advertising campaign, withdraw nearly all of
its ads, and design new ones—omitting the comical scenes, slogans, and effects—
at great expense. As a result, the firm lost the benefit of widespread public
recognition of its advertisements and slogans.
E.
Plaintiff Public Citizen
Public Citizen is a nonprofit consumer rights organization with
approximately 100,000 members nationwide, including approximately 9,450 in
New York at the time the case was filed. A. 46-47 ¶¶ 8-9. As an organization
devoted to defending the First Amendment and the rights of consumers, Public
Citizen has an interest in ensuring that its members are not restricted from
receiving communications regarding legal services. A. 46 ¶ 8. Public Citizen is
particularly interested in the availability of truthful legal advertising because
speech in this context not only encourages beneficial competition in the
12
marketplace for legal services, but can also educate consumers about their rights,
inform them when they may have a legal claim, and enhance their access to the
legal system. A. 46 ¶ 8. The state’s restrictions on attorney advertising injure
Public Citizen’s New York members, who are consumers of legal services, by
preventing them from receiving truthful information that they have an interest in
receiving and by making it more difficult for them to learn about their legal rights.
A. 46-47 ¶¶ 8-9.
F.
The Case Below
On February 1, 2007, the day the rules went into effect, plaintiffs sued
defendant chief counsels, who collectively are charged with enforcing the
disciplinary rules throughout the state. A. 16-30. Plaintiffs then moved for a
preliminary injunction against enforcement of the rules, attaching to their motion
the report and recommendations of the Task Force on Lawyer Advertising and
pointing out that the rules adopted by the presiding justices did not resemble the
task force’s recommendations. Doc. 6, nos. 7-8; A. 51. Plaintiffs also attached the
transcript of a panel presentation by former Presiding Justice Eugene F. Pigott, one
of the four justices who drafted the rules. Doc. 6, no. 10. Justice Pigott’s comments
during his presentation made clear that his motivation for the rules was founded
more on personal distaste for lawyer advertising than protecting consumers from
deception or other harm. A. 225; see also A. 222.
13
In its response to plaintiffs’ motion, the state argued that the targeted forms
of advertising were false or potentially misleading, but presented no evidence in
support of its views. Doc. 20. After a hearing, the Court reserved ruling on the
motion and scheduled an expedited trial on the merits. Doc. 26. The parties then
agreed to stipulate to all relevant facts, including the exhibits attached to the
preliminary injunction motion, and filed cross-motions for summary judgment.
Doc. 29, 33. Once again, the state failed to present any evidence in support of its
speech restrictions, adding only press releases by the New York State Office of
Court Administration and the New York State Bar Association. A.219, 222.
The court granted partial summary judgment to the plaintiffs, holding that
the state had failed to meet its burden of justifying its restrictions on commercial
speech under the standard set forth by the Supreme Court in Central Hudson Gas
& Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980). Recognizing
the “notable lack of evidence” submitted by the state in support of the rules, the
court declared unconstitutional and permanently enjoined enforcement of
§§ 1200.6(c)(1), (3), (5), and (7) of the rules. However, as to the thirty-day
moratorium, the court held that the state had satisfied its burden and granted
summary judgment to defendants. Although the state had never relied on the taskforce report in support of its position, the court nevertheless thought that the
report’s endorsement of a fifteen-day moratorium was sufficient to justify the rule.
14
The court acknowledged that the moratorium on all “communications” adopted by
the state was broader than the direct-mail moratorium recommended by the task
force, extending also to television, radio, newspaper, and website communications.
Nevertheless, the court concluded that the task force’s recommendation was
sufficiently close to justify the restriction, holding that “First Amendment
jurisprudence does not require that the State adopt the precise restriction that its
expert panel recommends.” A. 24.1
1
On appeal, the state does not challenge the district court’s ruling that the
restriction on pop-up advertisements violates the First Amendment. Defs.’ Br. at
14 n.1. Plaintiffs, for their part, do not challenge the district court’s decision to
uphold the restrictions on domain names, § 1200.7(e). Although the rule is not
supported with any evidence, the state and the district court’s relatively narrow
construction of the statute substantially alleviates plaintiffs’ concerns. A. 215. Nor
do plaintiffs challenge the district court’s rejection of their argument that the rules
unconstitutionally restrict nonprofit communications. Plaintiffs continue to believe
that the plain language of the rule unconstitutionally restricts noncommercial
speech. However, the district court’s narrowing construction of the rules, combined
with the state’s concession that the rules were not intended to cover
noncommercial speech, satisfies most of plaintiffs’ concerns about the potential for
unconstitutional application to core First Amendment speech. Finally, although the
district court declared all of § 1200.6(c)(3) unconstitutional and enjoined its
enforcement, plaintiffs intended only to challenge the first clause of that section,
which prohibits the portrayal of a judge. A. 30 ¶ 1. The state is correct to point out
that plaintiffs have not challenged the remainder of the rule, which prohibits “the
portrayal of a fictitious law firm, the use of a fictitious name to refer to lawyers not
associated together in a law firm, or otherwise imply that lawyers are associated in
a law firm if that is not the case.”
15
STANDARD OF REVIEW
This Court reviews a grant of summary judgment de novo, “constru[ing] all
the evidence in the light most favorable to the nonmoving party” and “drawing all
inferences and resolving all ambiguities in its favor.” Amidon v. Student Ass’n, 508
F.3d 94, 98 (2d Cir. 2007).
SUMMARY OF THE ARGUMENT
This case involves stringent new rules on attorney advertising in New York
that, if they had been evenly applied to advertising in other industries, would
prohibit virtually every commercial advertisement currently running in most forms
of media. These rules impose restrictions on a wide variety of stock advertising
devices, including attention-getting techniques, mottos, testimonials, and
depictions of judges that pose no realistic threat of misleading or otherwise
harming consumers. The rules also include a moratorium on communications with
victims following an accident or disaster that is so overbroad that it interferes even
with communications to consumers who are actively looking for a lawyer.
In Central Hudson, 447 U.S. 557, the Supreme Court set forth a four-part
test for evaluating restrictions on commercial speech such as the rules at issue here.
First, the court must determine whether the regulated speech is misleading or
involves unlawful activity. If so, then the speech is not protected by the First
Amendment. Otherwise, the court proceeds to the next three prongs of the test,
16
under which the state must prove—with actual evidence—that (1) the state’s
interests in limiting the speech are substantial; (2) the challenged regulation
advances those interests in a direct and material way; and (3) the extent of the
restriction on protected speech is narrowly tailored toward the interests served.
The state’s primary argument is that the Court should dramatically narrow
the range of commercial speech that can survive Central Hudson’s first prong to
preclude any advertisements that the state determines to be “irrelevant” or
“unverifiable.” With the possible exception of one or two state-court precedents,
however, no court has ever adopted this dangerous—and flatly wrong—
interpretation of Central Hudson. Rather, the Supreme Court and this Court have
repeatedly reaffirmed that speech survives Central Hudson’s first prong as long as
it is not misleading and does not promote illegal activity. In Bad Frog Brewery v.
New York State Liquor Authority, this Court specifically addressed and rejected the
argument urged by the state. 134 F.3d 87 (2d Cir. 1998). There, the Court held a
beer label depicting a frog making an obscene gesture was protected commercial
speech under Central Hudson. There is no reason why the speech at issue here
should receive any less protection.
Likewise, the state has no support for its contention that “unverifiable”
speech falls outside the First Amendment’s protection. On the contrary, both the
Supreme Court and numerous lower courts have held that puffery and boasting—
17
like the slogan “America’s Favorite Pasta,” see Am. Italian Pasta Co. v. New
World Pasta Co., 371 F.3d 387 (8th Cir. 2004)—are not intended to be literally
true and are not taken at face value by consumers. Despite the Supreme Court’s
warning that the state cannot treat consumers like children who are incapable of
understanding the nature of advertising, the state in this case is doing exactly that.
The only authority that the state claims supports its position is a 1985
summary reversal by the Supreme Court—which states no holding and cannot be
held to silently overrule decades of commercial speech jurisprudence—and a
smattering of federal district court and state court cases, none of which is
analogous to this case and, to the extent they contain dicta that supports the state’s
position, are wrongly decided and run headlong into Bad Frog Brewery and
Central Hudson. The state’s proposal to adopt language from the Florida Supreme
Court’s decision in Florida Bar v. Pape, 918 So. 2d 240 (Fla. 2005), would not
only create an arbitrary and unworkable system, it would give the state the power
to prohibit commercial speech at will, without the burden of articulating, must less
proving, an interest in doing so. Such a rule would eviscerate the Central Hudson
test.
Given that the regulated speech survives Central Hudson’s first prong, the
state has the burden of proving that its rules are necessary, effective, and narrowly
tailored to its objectives. Because the state failed to submit any evidence in support
18
of its rules, it cannot meet any of these evidentiary requirements. As to Central
Hudson’s second prong, although the state claims that its interest in the rules is to
prohibit false and misleading speech, the techniques that it targets are at most
potentially misleading, and the state may not adopt broad prophylactic rules
against categories of speech to save itself the trouble of ferreting out individual
cases of deception. Moreover, the state does not argue in support of the district
court’s holding that protecting the “dignity” of the Bar is a valid state interest, and,
in any case, that purported interest has been firmly and repeatedly rejected by the
Supreme Court.
In addressing Central Hudson’s third prong, the state attempts to rely on
evidence that was never relied on by defendants in the district court. For the first
time on appeal, the state attempts to pick out bits and pieces of language from the
state bar’s task-force report that are in some way related to its chosen rules.
However, the state’s reliance on the report is futile, both because the task force’s
conclusions are the opposite of the conclusions drawn by the state, and because, in
any case, the report itself is not based on any evidence.
As for the specific restrictions chosen by the state, none serve the state’s
asserted interests. The restriction on attention-getting techniques, while
purportedly targeted at misleading speech, actually prohibits nothing more than
commonplace advertising techniques that consumers are accustomed to seeing in
19
the media every day. The prohibition on nicknames, monikers, mottos, and trade
names is supported by no evidence and, given that mottos will usually appear
alongside a law firm’s name, does not target advertising techniques that are likely
to mislead anyone as to the identity of the advertising firm. The state attempts to
justify its prohibition on the depiction of judges by appealing to an interest in
preventing the appearance of improper influence, but the state provides no
evidence that consumers are confused by images of judges or that any attorney has
ever abused this device. The prohibition on testimonials of current clients
regarding pending matters, which the state claims prevents improper pressure on
clients, is likewise unsupported by evidence of past abuse and is so poorly tailored
to the state’s asserted goals that it cannot possibly justify a restriction on First
Amendment rights.
The final section of the brief deals with plaintiffs’ cross-appeal, which
challenges the district court’s decision upholding the constitutionality of the state’s
thirty-day moratorium on contact with accident victims. In the district court, the
state’s only justification for the rule was the Supreme Court’s decision in Florida
Bar v. Went For It, 525 U.S. 618, which upheld a much narrower moratorium on
direct-mail solicitations. But the Supreme Court’s rationale in Went For It—that
letters directed to a person’s home on the heels of a personal tragedy were viewed
by consumers as an invasion of privacy—is not served by the state’s moratorium
20
here. Rather than just banning direct-mail solicitations, the state bans all
“communications,” including advertisements on the Internet and in mass media
that do not invade anyone’s privacy. The state has not presented any evidence that
this much broader moratorium solves any real-world harms, or that it is narrowly
tailored toward the state’s chosen purpose. Unlike Went For It, the state’s policy
here is justified by nothing more than paternalism. The moratorium, too, therefore
fails the Central Hudson test.
ARGUMENT
To survive First Amendment scrutiny, a restriction on commercial speech
must satisfy the test set forth by the Supreme Court in Central Hudson:
At the outset, we must determine [1] whether the expression is
protected by the First Amendment. For commercial speech to come
within that provision, it at least must concern lawful activity and not
be misleading. Next, we ask [2] whether the asserted governmental
interest is substantial. If both inquiries yield positive answers, we
must determine [3] whether the regulation directly advances the
governmental interest asserted, and [4] whether it is not more
extensive than is necessary to serve that interest.
Central Hudson, 447 U.S. at 566.2
2
As the state explains, the Supreme Court has alternately described Central
Hudson as a four-part test, with the First Amendment question being the first part
of the test, or as a three-part test, with the First Amendment question characterized
as a threshold issue. The briefs in the district court and the district court’s opinion
used the three-part formulation, but for sake of consistency with the state’s brief in
this Court, plaintiffs will use the four-part formulation here.
21
On appeal, the state argues for a dramatic restriction of the first part of the
test, contending that, to be protected, speech must not only concern lawful activity
and not be misleading, but must also not be “irrelevant,” “non-informational,” or
“unverifiable.” As an alternative, the state argues—despite the district court’s
observation that evidence in support of the rules was “notably lacking,” A. 239—
that it satisfies the heavy evidentiary burden of Central Hudson’s final three
prongs. The state is wrong on both counts.
I.
The First Amendment Protects Commercial Speech Regardless of
Whether the State Considers It “Relevant” or “Verifiable.”
Apparently recognizing that the lack of any evidence in support of its rules
makes it impossible for it to satisfy its burden under Central Hudson, the state’s
primary argument on appeal is that this Court should hold that commercial speech
that is “irrelevant” or “unverifiable” is entirely outside the protection of the First
Amendment. According to the state, these broad new categories of unprotected
speech include such common devices as puffery, dramatization, exaggeration,
statements of opinion, use of absurdity, humor, appeals to emotion, special effects,
and anything else that the state concludes—apparently without the need to rely on
any evidence—to be “unrelated to rational decisions about selection of counsel.”
Defs.’ Br. at 18. The state posits two main types of speech that should be
unprotected: speech that is “irrelevant” or “non-informational,” including
attention-getting techniques and possibly depictions of judges, and speech that,
22
although perhaps relevant, is “unverifiable,” including mottos and statements of
quality.3
The Court held in Central Hudson, however, that commercial speech
satisfies the first prong of the test as long as it “concern[s] lawful activity” and is
not “misleading.” Central Hudson, 447 U.S. at 566. Since then, the Court has
never recognized new exceptions to Central Hudson for irrelevant or unverifiable
speech. Indeed, the Court has repeatedly reaffirmed that “[c]ommercial speech that
is not false, deceptive, or misleading can be restricted . . . only if the State shows
that the restriction directly and materially advances a substantial state interest in a
manner no more extensive than necessary to serve that interest.” Ibanez v. Fla.
Dep’t of Bus. & Prof’l Reg., 512 U.S. 136, 142 (1994) (emphasis added). The
state’s position is incompatible with these precedents, unworkable in practice, and,
if adopted, would effectively eviscerate the Central Hudson test.
A.
“Irrelevant” Commercial Speech
The first category of commercial speech that the state claims it can prohibit
with unregulated authority is advertising containing “irrelevant” or “non-
3
The state’s prohibition on client testimonials prohibits speech that is both
relevant, because potential clients would likely value knowing a current client’s
experience with a lawyer, and verifiable, because the state could always track
down the client who gave the testimonial. Thus, at least this restriction, even under
the state’s theory, would have to be evaluated under the final three prongs of the
Central Hudson test.
23
informational” speech. The state’s argument, however, is foreclosed by Bad Frog
Brewery v. New York State Liquor Authority, 134 F.3d 87 (2d Cir. 1998). In that
case, New York sought to prohibit a beer label that depicted a frog extending its
middle “finger” (or unwebbed toe) in an obscene gesture. Id. at 90-91. The state
then argued, as it again argues here, that the commercial speech at issue was not
subject to any First Amendment protection because it “convey[ed] no useful
consumer information.” Id. at 93, 94. The Court disagreed, holding that the labels
“pass[ed] Central Hudson’s threshold requirement that the speech ‘must concern
lawful activity and not be misleading.’” Id. at 98. Accordingly, the Court applied
the remaining three prongs of the Central Hudson test, ultimately rejecting the
state’s claimed interests and striking down the restriction as unconstitutional. Id. at
97-101.
The Court in Bad Frog Brewery disagreed with the state’s argument that the
labels communicated no information, holding that they at least “attempted to
identify to consumers a product of the Bad Frog Brewery” and, in addition,
“serve[d] to propose a commercial transaction.” Id. at 96-97. The Court concluded
that even “minimal information, conveyed in the context of a proposal of a
commercial transaction, suffices to invoke the protections for commercial speech,
articulated in Central Hudson.” Id.; see also Va. State Bd. of Pharmacy v. Va.
Citizens Consumer Council, Inc., 425 U.S. 748, 765 (1976) (holding that even
24
advertising the state may consider to be “tasteless” or “excessive” “is nonetheless
dissemination of information as to who is producing and selling what product, for
what reason, and at what price”).
The Supreme Court, too, has rejected the idea that a state may ban
commercial speech based on its own conceptions of relevance. In Bates v. State
Bar of Arizona, the first case to recognize a First Amendment right in lawyer
advertising, the state bar argued that such advertising was not protected by the First
Amendment because of its potential to “highlight irrelevant factors” in the
selection of a lawyer. 433 U.S. 350, 372 (1977). The Court refused to credit the
state’s asserted interest, noting that it “assumes the public is not sophisticated
enough to realize the limits of advertising.” Id. at 374-75; see also id. at 376
(noting that “the basic factual content of advertising” such as “information as to the
attorney’s name, address, and telephone number, office hours, and the like” were
allowed by state rules, but that “an advertising diet limited to such spartan fare
would provide scant nourishment”).
Since then, the Court has continued to reject similar arguments made in
support of advertising restrictions. In Shapero v. Kentucky Bar Association, the
Court held that the state could not restrict speech just because it was designed to
“catch the recipient’s attention,” nor could it limit lawyer advertising to “a bland
statement of purely objective facts.” 486 U.S. 466, 479 (1988). The Court held that
25
“so long as the First Amendment protects the right to solicit legal business, the
State may claim no substantial interest in restricting truthful and nondeceptive
lawyer solicitations to those [forms] least likely to gain the attention of the
recipient.” Id.; see also In re RMJ, 455 U.S. 191, 205-06 (1982) (holding that an
attorney advertisement was “relatively uninformative” and in “bad taste,” but
nevertheless constitutionally protected in the absence of evidence that “such a
statement could be misleading to the general public”).
Although the state is correct that the Supreme Court in reviewing the
constitutionality of commercial speech restrictions has sometimes noted that
commercial speech in general, or the prohibited speech in particular, was relevant
and useful to consumers, it does not follow that speech must always and in every
respect be relevant to be entitled to First Amendment protection. If there were any
doubt about that point, Bad Frog Brewery settled it. In that case, the Court
reviewed many of the same precedents urged by the state here and noted the same
sorts of “doctrinal uncertainties” in the Supreme Court’s early commercial speech
cases about “the degree of protection for commercial advertising that lacks precise
informational content.” 134 F.3d at 94. The Court concluded, however, that, even
if commercial speech does no more than propose a commercial transaction, and
26
even if it may be offensive to some, it is still protected commercial speech entitled
to constitutional protection under Central Hudson. Id. at 96-97.4
B.
“Unverifiable” Commercial Speech
Although the Supreme Court in Bates rejected the state’s argument that
attorney advertising should not receive First Amendment protection because of its
potential to highlight irrelevant factors, the state correctly notes that Bates left open
the question of what standard to apply to “advertising claims relating to the quality
of legal services,” which the Court noted “probably are not susceptible of precise
measurement or verification.” Bates, 433 U.S. at 366. Based on this unanswered
question from Bates, the state argues that unverifiable advertisements, like
irrelevant ones, fall entirely outside the protection of the First Amendment.
Since Bates, however, the Court has never held commercial speech to be
unprotected solely because it could not be verified. To the contrary, the Court in
Shapero rejected the state’s argument that a mailed solicitation could be prohibited
4
This does not mean that all irrelevant speech necessarily survives
constitutional scrutiny, because the state in individual cases may still attempt to
satisfy Central Hudson’s final three prongs. In some cases, giving undue emphasis
to irrelevant information may render a communication deceptive. For example, if
an attorney were to prominently highlight certification by an organization of which
he is the founder and only member, consumers might actually be misled into
believing that the certification had some importance that it did not. Even in such
cases, however, it is the state’s burden to show that the communication is actually
deceptive. See Shapero, 486 U.S. at 479; RMJ, 455 U.S. at 206. In this case, the
state has not even argued, much less proved, that any of the advertising at issue
creates this kind of deception.
27
because it included statements—such as “It may surprise you what I may be able to
do for you”—that “stat[ed] no affirmative or objective fact,” constituted “pure
salesman puffery,” and were an “enticement for the unsophisticated, which
committed [the lawyer] to nothing.” 486 U.S. at 478 (internal quotation marks
omitted). Recognizing that consumers are not so easily misled by stock advertising
techniques, the Court has also refused to credit “the paternalistic assumption” that
consumers of legal services “are no more discriminating than the audience for
children’s television.” Peel v. Attorney Registration & Disciplinary Comm’n, 496
U.S. 91, 105 (1990).
Other courts have also recognized that advertising is not misleading to
consumers just because it contains “exaggerated, blustering, and boasting
statement upon which no reasonable buyer would be justified in relying” or “a
general claim of superiority over comparable products that is so vague that it can
be understood as nothing more than a mere expression of opinion.” Pizza Hut, Inc.
v. Papa John’s Int’l, Inc., 227 F.3d 489, 496 (5th Cir. 2000) (holding that that
Pizza Hut’s slogan “Better Ingredients. Better Pizza” was not actionable as false
advertising); Am. Italian Pasta Co., 371 F.3d 387 (holding that the motto
“America’s Favorite Pasta” was unverifiable but neither false nor misleading).
Indeed, this Court has held that a statement’s inherent unverifiability is a factor
enhancing its protection under the First Amendment, because “a reader cannot
28
rationally view an unverifiable statement as conveying actual facts.” Mr. Chow of
N.Y. v. Ste. Jour Azur S.A., 759 F.2d 219, 229 (2d Cir. 1985) (internal quotation
omitted).
C.
No Authority Supports the State’s Position.
1.
The Iowa Supreme Court’s Decision in Committee on
Professional Ethics v. Humphrey Did Not Silently Adopt the
State’s Proposed Rule.
Although it concedes that no Supreme Court authority “squarely” endorses
its position, the state suggests that its conclusion is nonetheless mandated by the
Supreme Court’s summary dismissal in Committee on Professional Ethics v.
Humphrey, 377 N.W.2d 643 (Iowa 1985), summarily dismissed by 475 U.S. 1114
(1986), in which the state argues that the Iowa Supreme Court adopted its position
here. The Supreme Court’s summary dismissal, however, did not adopt the Iowa
Supreme Court’s reasoning; rather, the precedential value of such a dismissal is
limited to “the precise issues presented and necessarily decided by” the dismissal.
Mandel v. Bradley, 432 U.S. 173, 176 (1977). For this reason, it is often difficult or
impossible to determine the precedential value of a summary dismissal beyond its
binding effect on the dismissed case itself. Id.
The meaning that the state reads into the dismissal in Humphrey—that
irrelevant advertising is unprotected by the First Amendment—is not a necessary
reading of the dismissal’s meaning and thus is not controlling here. Although the
29
Iowa Supreme Court’s opinion is phrased in broad terms, a key factor justifying
the decision was the court’s conclusion, based on record evidence developed at an
evidentiary hearing, that the advertisements at issue were misleading. Humphrey,
355 N.W.2d at 567, 570. The court thought that the ads, though not intentionally
deceptive, misrepresented the experience of the advertising lawyers, who had tried
only a few cases. Id. The court was also concerned that, while advertising their
availability on a contingency fee basis, the lawyers were “conspicuously silent”
about the client’s responsibility for costs. Id. Although the court’s opinion does not
discuss the record in detail, and although there was disagreement among the
justices about the import of the evidence, the Supreme Court could have decided
that the state had satisfied the Central Hudson test by proving that the ads were
misleading. If that is true, then its summary dismissal would have little
precedential value in other cases. Central Hudson is a fact-based standard, and the
import of the Court’s holding is thus necessarily limited to the facts of the case.5
5
The language on which the state relies is from the Iowa Supreme Court’s
decision in Humphrey that was vacated in Zauderer v. Office of Disciplinary
Counsel, 471 U.S. 626 (1985). On remand, the Iowa Supreme Court reaffirmed its
earlier decision, though it focused its discussion more narrowly on the fact that the
lawyers’ advertisements were on television rather than in print. If the Supreme
Court’s summary dismissal could ever have been read to suggest that television
advertisements are entitled to less constitutional protection than other forms of
advertising—an argument the state does not advance here—it can no longer
plausibly carry that meaning. The Court has subsequently applied the Central
Hudson test to television advertisements. See Greater New Orleans Broad. Ass’n,
30
The Supreme Court has stressed that a summary reversal “is not to be read
as a renunciation . . . of doctrines previously announced in [] opinions after full
argument” and cannot be “understood as breaking new ground.” Mandel, 432 U.S.
at 176. Especially given the Supreme Court’s adoption of the Central Hudson test
just five years earlier, it is unlikely that the Court would have chosen a summary
disposition as a vehicle to announce a major change in the test. Moreover, the
import of a summary dismissal is diminished to the extent it is inconsistent with
subsequent doctrinal developments. Id. After more than twenty years of subsequent
decisions on the commercial free speech doctrine, which have gradually elaborated
on the state’s burden under Central Hudson but have never mentioned Humphrey,
the Court’s summary dismissal, whatever it may have meant in 1985, means
nothing today.
2.
Florida Bar v. Pape and Other Cases
In addition to Humphrey, the state relies for its proposed rule on a smattering
of federal district court and state court decisions, none of which—with one
possible exception—adopts the rule it urges here. First, Farrin v. Thigpen, 173 F.
Inc. v. United States, 527 U.S. 173 (1999) (striking down restrictions on
broadcasting lottery information under the Central Hudson test); United States v.
Edge Broadcasting Co., 509 U.S. 418 (1993) (striking down restrictions on casino
advertising); see also Tillman v. Miller, 133 F.3d 1402 (11th Cir. 1998) (holding
that the state had failed to meet its burden of justifying restrictions on television
advertisements); Schwartz v. Welch, 890 F. Supp. 565 (S.D. Miss. 1995) (striking
down restrictions on a variety of common television advertising techniques).
31
Supp. 2d 427 (M.D.N.C. 2001), and In re Zang, 741 P.2d 267 (Ariz. 1987), both
involved advertisements that the courts explicitly found to be deceptive. In Farrin,
the court upheld a restriction on a particular “fictional vignette,” but did not base
its decision on the rationale advanced by the state—that dramatizations are not
protected by the First Amendment. Indeed, the court disclaimed that interpretation
of its holding, noting that “the use of dramatization was not a factor” and that “no
one contend[ed] that, through the dramatization, viewers will mistake the actors for
actual insurance adjusters.” Farrin, 173 F. Supp. 2d at 442. Instead, the court, after
hearing evidence submitted by the state on the ad’s deceptiveness, held that the
advertisement at issue was a materially deceptive depiction of an insurance
company’s settlement process and was thus prohibited by the state’s ethics rules
against false and misleading ads. Id. at 440.
Similarly, in Zang, the Arizona Supreme Court upheld disciplinary sanctions
against lawyers who starred in “very dramatic” television commercials, 741 P.2d at
274, but not because the commercials were dramatic. Rather, the court concluded,
based on record evidence, that the lawyers portrayed themselves in their
commercials as skilled trial practitioners, when in fact they had very little trial
experience and “scrupulously avoided” taking cases to trial. Id. Although the court
did generally caution lawyers against overly dramatic advertisements, noting that
such advertisements “should be examined carefully to assure that they are neither
32
false nor misleading,” the court specifically stated that dramatic advertisements
were not prohibited by the state’s rules. Id. at 276-78.
Nor do Texans Against Censorship, Inc. v. State Bar of Texas, 888 F. Supp.
1328 (E.D. Tex. 1995), or In re Felmeister & Isaacs, 518 A.2d 188 (N.J. 1986),
support the state’s position here. Although both these courts upheld restrictions on
advertising that could be characterized as irrelevant, both also recognized that the
state must satisfy the four-prong Central Hudson test to justify a restriction on
commercial speech. To be sure, the courts’ application of the test was flawed—in
Texans Against Censorship, it is not always clear what evidence the court was
relying on, and in Felmeister the court acknowledged that the necessary evidence
did not yet exist. But neither court adopted a rule that irrelevant or unverifiable
statements are always unprotected. Indeed, Felmeister recognized that at least
some attention-getting techniques in advertising are both useful and
constitutionally protected. Felmeister, 518 A.2d at 192-95.
The decision that comes closest to endorsing the state’s view of the First
Amendment is the Florida Supreme Court’s decision in Florida Bar v. Pape, 918
So. 2d 240 (Fla. 2005). The court in Pape upheld restrictions—which it had itself
adopted—prohibiting a law firm from using an image of a pit bull in its
advertisements. Id. at 247-49. Overruling a referee’s conclusion that the
advertisements were “tastefully done” and that pit bulls as a breed are perceived as
33
“loyal, persistent, tenacious, and aggressive,” id. at 243, Pape engaged in a lengthy
and entirely subjective attack on pit bulls as a breed, citing anti-pit-bull laws and
judicial decisions involving pit bull attacks in support of its conclusion that pit
bulls are associated with “malevolence, viciousness, and unpredictability.” Id. at
245. The court expressed concern that if it upheld the use of a pit bull image,
“images of sharks, wolves, crocodiles, and piranhas could follow.” Id. at 247.
The court in Pape erred to the extent it concluded that the speech at issue
was misleading merely because, in the court’s opinion, the speech was not relevant
to the selection of counsel. If that were the basis of the court’s holding, the case
would be incompatible with Bad Frog Brewery. 134 F.3d at 96-97. It is difficult to
see why a frog with its middle finger extended should be entitled to First
Amendment protection but a pit bull should not. However, there is another way to
read Pape. Although the court discussed the issue of relevance in broad terms, the
precise basis for its holding was that the pit bull image suggested that the
advertising lawyer would “get results through combative and vicious tactics that
will maim, scar, or harm the opposing party.” 918 So. 2d at 246. The court
concluded that the advertisement thus “suggest[ed] behavior, conduct, or tactics
that are contrary to [the] Rules of Professional Conduct.” Id. Plaintiffs’
advertisements in this case, however, do not include any elements that suggest
vicious or unethical tactics. Indeed, the overall message portrayed by the
34
commercials seems to be that Alexander and his partner are friendly and eager to
help. See A. 224. Pape is therefore inapplicable here.6
D.
The State’s Proposed Test Would Be Unworkable and
Incompatible with the Central Hudson Framework.
Even if the state had a legitimate interest in prohibiting “irrelevant” or
“unverifiable” ads, the question whether particular speech falls within these
categories is not a decision that the state is competent to make. The state here has
not attempted to define the terms or to provide guidelines for courts trying to apply
them, and, as the Supreme Court has recognized, “no line between publicly
‘interesting’ or ‘important’ commercial advertising and the opposite kind could
ever be drawn.” Va. State Bd. of Pharmacy, 425 U.S. at 765. Thus, although the
state may consider certain information to be “of slight worth,” the First
Amendment dictates that it is for “the speaker and the audience, not the
government, [to] assess the value of the information presented.” Edenfield v. Fane,
507 U.S. 761, 767 (1993).
6
The state also relies on the disciplinary rules of other states that have gone
“unchallenged.” If a restriction on speech could be rendered constitutional merely
by reference to unchallenged rules in other jurisdictions, Bates would never have
been decided because, at the time of that decision, nearly every state banned
attorney advertising. Moreover, the rules identified by the state are operative in
only a small minority of jurisdictions, most of which have rules substantially less
strict than New York’s.
35
In a similar context, the Supreme Court in Zauderer struck down rules
restricting the use of illustrations or pictures in attorney advertisements, noting that
these devices serve the “important communicative functions” of “attract[ing] the
attention of the audience to the advertiser’s message” and, often, of “impart[ing]
information directly.” 471 U.S. at 647; see also Grievance Comm. v. Trantolo, 470
A.2d 228, 234 (Conn. 1984) (holding that ads containing dramatizations were
“informative and in no way misleading or deceptive”). Like illustrations and
dramatizations, attention-getting techniques are often used in advertising to
communicate ideas in an easy-to-understand form, to attract viewer interest, to give
emphasis, and to make information more memorable. As the staff of the Federal
Trade Commission noted in their comments to the draft version of the rules,
common advertising techniques like dramatizations can “be an effective way of
reaching consumers who do not know how legal terminology corresponds to their
experiences and problems,” and can therefore be “useful to consumers in
identifying suitable providers of legal services.” A. 182-83.7
7
Zauderer provides a useful example of the importance of attention-getting
techniques. The attorney in that case was disciplined for including an illustration of
an intra-uterine device in his advertisements. The ads that included the image
attracted more than two hundred inquiries and led to 106 lawsuits, while a another
version of the ad lacking the image attracted no clients. The Supreme Court, 1984
Term, 99 Harv. L. Rev. 193, 198-99 (1985).
36
Although large physical size is not a characteristic related to a lawyer’s
competence, Alexander & Catalano’s television commercial depicting its attorneys
as the size of giants illustrates its slogan “think big” in a memorable way, and the
firm’s commercial depicting a judge illustrates the firm’s willingness to go to court
on its clients’ behalf. With its irreverent humor, Alexander & Catalano also
communicates the message that its lawyers are ordinary people, who are not above
representing average consumers. In this way, advertisements can make attorneys
more approachable by humanizing them in the eyes of consumers who may
otherwise view them as elitist and inaccessible.
In those cases where an advertisement really is completely useless to
consumers, the problem will be solved by the market without the need for
government intervention. Consumers would be unlikely to respond to such
advertising, and advertisers would therefore not continue to use it. For this reason,
the Supreme Court in Central Hudson held that even advertising by a monopoly
was subject to First Amendment protection, rejecting the view of the New York
Court of Appeals that such advertising “could not improve the decisionmaking of
consumers” and “convey[ed] little useful information.” 447 U.S. at 556-57. As the
Court recognized in Central Hudson, “[m]ost businesses . . . are unlikely to
underwrite promotional advertising that is of no interest or use to consumers.” Id.
at 567.
37
The state’s proposed rule would not only be unworkable in practice, but
would effectively eviscerate the careful restraints on commercial speech developed
by the Supreme Court over the past thirty years. The categories of speech the state
claims to be unprotected are so large—encompassing nearly all forms of common
and effective advertising—that they would prohibit virtually every advertisement
currently running on television. If the state’s position were the law, a state could
prohibit, for example, Coca-Cola from using polar bears in its commercials
because the state considers them to be “irrelevant,” or the slogan “Can’t beat the
real thing” because it is “unverifiable.” If such everyday advertising techniques
and routine puffery could be considered misleading, “the advertising industry
would have to be liquidated in short order.” Pizza Hut, 227 F.3d at 499 (internal
quotation marks omitted). And if Coca-Cola deserves protection against such
arbitrary impositions, so does Alexander & Catalano. The Supreme Court has
stressed that a state’s distaste for lawyer advertisements does not allow it to restrict
truthful, nonmisleading advertising to any greater extent than it can restrict similar
advertising in other industries. See Zauderer, 471 U.S. at 646-47.
The most troubling aspect of the rule advocated by the state is that, by
removing certain categories of speech from the Central Hudson test that the state
deems to be “irrelevant” or “unverifiable,” the state would be allowed to impose
restrictions on speech without the need to prove or even articulate an interest in
38
doing so, and without showing that the restrictions are either necessary or
effective. Such a test would turn Central Hudson on its head, replacing the state’s
heavy burden of proof with a presumption that restrictions are constitutional. This
Court should refuse to adopt the state’s unworkable and dangerous test.
II.
The Challenged Rules Unconstitutionally Restrict the Content of
Commercial Speech.
The final three prongs of the Central Hudson test provide that a state seeking
to justify restraints on speech that is not false or misleading faces the heavy burden
of demonstrating—with actual evidence—that the purported harms it seeks to
address are real and that its chosen restraints will in fact alleviate those harms to a
substantial degree. Edenfield, 507 U.S. at 770-71. A state’s failure to “provide
direct and concrete evidence that the evil that the restriction purportedly aims to
eliminate does, in fact, exist will doom the . . . regulation.” N.Y. State Ass’n of
Realtors, Inc. v. Shaffer, 27 F.3d 834, 842 (2d Cir. 1994).
Having staked its argument in the district court on its contention that
irrelevant and unverifiable speech is entitled to no constitutional protection, the
state has made no more than a token effort to satisfy this rigorous test. The state
has produced no disciplinary records, studies, surveys, or empirical research of any
kind suggesting that its amended rules address anything but non-existent problems
or are likely to benefit consumers. Because the record is devoid of any evidence in
39
support of the challenged rules, the rules cannot survive constitutional scrutiny
under Central Hudson.
A.
No Valid Interests Justify the State’s Restrictions on Speech.
The state asserts, as its sole interest supporting the rules, an “interest in
prohibiting attorney advertisements from containing deceptive or misleading
content.” Defs.’ Br. at 32. The state never claims, however, that the sorts of stock
advertising devices prohibited by the rules are actually false, and it defies belief
that consumers could be deceived by common advertising devices like attentiongetting techniques, actors portraying judges, testimonials, endorsements, and
mottos. See Peel, 496 U.S. at 105 (warning that states should not treat consumers
of legal services as “no more discriminating than the audience for children’s
television”); see also FTC v. Verity Int’l, Ltd., 443 F.3d 48, 63 (2d Cir. 2006)
(noting that an advertisement is deceptive under the Federal Trade Commission
Act only “if it is likely to mislead consumers, acting reasonably under the
circumstances, in a material respect”).
As the state acknowledges at several points in its brief, its actual interest in
this case is not to prohibit speech that is actually false or misleading, but to
prohibit speech that is “potentially misleading.” Defs.’ Br. at 36 (“New York’s
prohibition of irrelevant, nonverifiable and nonfactual advertisements materially
advances New York’s interest in ending attorney advertising that is potentially
40
deceptive or misleading”); see also id. at 5, 13, 16, 27, 37-38. This asserted interest
corresponds to the only public statement about the purpose of the rules by the
drafters, the presiding justices, who announced in a press release that the rules
were designed to protect consumers against “potentially misleading ads.” A. 223.
In almost every constitutional challenge to lawyer advertising rules,
defendants have argued that the rules are intended to prohibit potentially
misleading ads, and the Supreme Court has consistently rejected this argument.
See, e.g., Ibanez, 512 U.S. at 146 (holding that courts “cannot allow rote
invocation of the words ‘potentially misleading’ to supplant the [state’s] burden”).
In RMJ, for example, the Court struck down a restriction preventing a lawyer from
truthfully advertising that he was a member of the United States Supreme Court
Bar. 455 U.S. 191. Although the Court noted that the statement “could be
misleading to the general public unfamiliar with the requirements of admission to
the Bar of this Court,” it found “nothing in the record to indicate that the inclusion
of this information was misleading.” Id. at 939. Similarly, the Supreme Court in
Peel held that the state violated the First Amendment by disciplining a lawyer for
stating on his letterhead that the National Board of Trial Advocacy had certified
him as a civil trial specialist. 496 U.S. 91 (1990). The Court rejected the state’s
“paternalistic assumption” that “the average consumer” would be confused or
unable to understand the value of the certification. Id. at 105-06 & 106 n.13.
41
Notably, the state does not raise on appeal the second purported state interest
relied on by the district court: the “interest in maintaining attorney professionalism
and respect for members of the bar.” A. 239 n.6. The state’s failure to assert that
interest forecloses reliance on it here. Edenfield, 507 U.S. at 768 (“[W]e must
identify with care the interests the State itself asserts. Unlike rational-basis review,
the Central Hudson standard does not permit us to supplant the precise interests
put forward by the State with other suppositions.”). In any case, the Supreme Court
since Bates has rejected dignity and professionalism as justifications for
restrictions on speech. 433 U.S. at 368 (finding the “postulated connection between
advertising and the erosion of true professionalism to be severely strained”). The
Court has repeatedly reaffirmed the principle that attorneys have a First
Amendment right to advertise even if the advertisements are “embarrassing or
offensive” to some members of the public or “beneath [the] dignity” of some
members of the bar. Zauderer, 471 U.S. at 647-48. Indeed, the principle that the
state may not regulate speech that it finds disagreeable is the “bedrock principle
underlying the First Amendment.” Texas v. Johnson, 491 U.S. 397, 414 (1989).8
8
See also Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 71 (1983)
(“[W]e have consistently held that the fact that protected speech may be offensive
to some does not justify its suppression.”) (quotation omitted); Va. State Bd. of
Pharmacy, 425 U.S. at 765 (“Advertising, however tasteless and excessive it
sometimes may seem, is nonetheless dissemination of information as to who is
producing and selling what product, for what reason, and at what price.”); Ficker v.
42
In support of the validity of the purported interest in maintaining
“professionalism,” the district court relied only on Florida Bar v. Went For It, Inc.,
515 U.S. 618 (1995). The Supreme Court in Went For It, however, based its
decision on entirely different justifications: the interests in the protection of
privacy and the well-being and tranquility of the home. Id. at 625 (citing Carey v.
Brown, 447 U.S. 455, 471 (1980); Frisby v. Schultz, 487 U.S. 474, 484-85 (1988)).
The Court relied on extensive empirical evidence showing that consumers viewed
a targeted direct-mail solicitation coming on the heels of a personal tragedy to be a
traumatic invasion of personal privacy, id. at 626-27, and considered the state’s
interest in protecting the privacy of consumers from these solicitations to be an
application of the state’s power “to protect the public health, safety, and other valid
interests,” id. at 625. The Court mentioned the public’s confidence in the bar only
as it related to these interests. Id. at 625-27.
Went For It did not overrule any of the Court’s long line of precedents
holding that dignity alone is not a valid state interest. In response to the dissent’s
contention that the Court was “unsettl[ing]” its precedents, the majority responded
Curran, 119 F.3d 1150, 1154 (4th Cir. 1997) (“[T]he Supreme Court forbids us
from banning speech merely because some subset of the public or the bar finds it
embarrassing, offensive, or undignified.”); In re Shapiro, 225 A.D.2d 215, 216
(N.Y. App. Div. 1996) (declining to discipline a lawyer for an advertisement that,
while “extremely offensive and degrading to the legal profession, [was]
nonetheless constitutionally protected hyperbole”).
43
that it was doing “no such thing,” emphasizing that “[t]here is an obvious
difference between situations in which the government acts in its own interests, or
on behalf of entities it regulates, and situations in which the government is
motivated primarily by paternalism.” Id. at 632 n.2. Thus, the state may regulate
lawyer advertising when it damages the public’s confidence in the legal system by
directly injuring consumers—such as by defrauding them or invading their privacy.
The state may not, however, prohibit speech because of its belief that the
communication itself is unprofessional or undignified.
Even if the state did have a valid interest in protecting the image of lawyers,
it has no evidence that lawyer advertising in general, and the targeted forms of
advertising in particular, have a negative impact on the image of the bar. Almost
all advertisements use some sort of attention-getting technique or slogan, and many
of them are done tastefully in a way that appeals to consumers. Improving public
opinion of a product or service is, after all, one of the main motivations for
advertising. As the Supreme Court wrote in Bates, other professions such as
bankers and engineers advertise (often using methods similar to those used by
lawyers), “and yet these professions are not regarded as undignified.” 433 U.S.
369-70.9
9
If anything, “stylish” ads, of the sort that consumers are used to seeing, are
likely to give consumers a better impression of lawyers than the bland “talking
44
B.
The Rules Do Not Advance the State’s Claimed Interests.
Even assuming that the state has asserted a valid interest, it still must “bear[]
the burden of showing not merely that its regulation will advance its interest, but
also that it will do so to a material degree.” 44 Liquormart, Inc. v. Rhode Island,
517 U.S. 484, 505 (1996). Although preventing false and misleading advertising is
undoubtedly a valid state interest, state regulations cannot advance that interest
when they target advertising techniques that are neither false nor misleading.
Edenfield, 507 U.S. at 770-71.
As the district court observed, the evidence supporting the need for the rules
in this case “is notably lacking.” A. 239. The only evidence the state relies on in
support of its rules is the Report and Recommendation of the Task Force on
Lawyer Advertising. A. 51. The state’s reliance on the report is new on appeal; the
plaintiffs submitted the task-force report in the district court, and the state never
cited or relied on it there. Doc. 6, nos. 7-8. Nevertheless, the district court, acting
on its own initiative, found several passages in the report that it felt satisfied the
state’s burden on the third prong of the Central Hudson test, and the state has now
followed the district court’s lead in pointing out similar portions of the report. But
heads” ads of the sort required by restrictive state ethics rules. William E. Hornsby,
Jr., Regulating Lawyer Advertising: Public Images and the Irresistible Aristotelian
Impulse, 9 Geo J. Legal Ethics 325, 350-56 (1996) (reviewing an American Bar
Association Study).
45
see Edenfield, 507 U.S. at 768 (holding that the court must rely on the actual
interests asserted by the state).
The state’s reliance on the report is flawed for two major reasons. First, the
state cannot rely on the recommendations of the task-force report in support of its
rules because it did not adopt any of the task force’s recommendations. The state
concedes that the report’s suggested rules “do[] not mirror” its chosen regulations,
Defs.’ Br. at 36, but that is an understatement. The task force specifically ruled out
content-based restrictions, A. 55-56, and none of the regulations at issue in this
appeal—with the partial exception of the moratorium—were proposed or even
mentioned in the report.10
Second, even if the task force had recommended the amendments adopted
by the state, it would not be enough to satisfy the state’s burden here. Other than
reviewing approximately 250 lawyer advertisements, the task force conducted no
empirical research, studies, or surveys, and accumulated no other evidence, to
determine what kinds of advertising are likely to mislead the public. A. 60-61. As
for its review of the lawyer ads, the report does not suggest that any of them
contained the sorts of techniques prohibited by the rules or, if they did, whether the
techniques misled or otherwise harmed consumers. A. 100-02. The unsubstantiated
10
Notably, the New York State Bar Association’s amicus curiae brief—
although defending the district court’s decision to sustain the moratorium—does
not defend any of the rules declared unconstitutional by the district court.
46
opinions of the task force members have no more evidentiary value than the
unsubstantiated opinion of the state. Edenfield, 507 U.S. at 770 (holding that the
state’s burden is “not satisfied by mere speculation or conjecture”).
In addition to these general problems with the state’s evidentiary showing,
the state’s justification for each of the individual amendments is seriously flawed.
1.
The Prohibition on Attention-Getting Techniques
Although the state’s asserted interest is in prohibiting “false and misleading”
ads, it does not argue, much less provide evidence, that the sorts of “techniques to
obtain attention” prohibited by § 1200.6(c)(5) are false or misleading, or that this
rule will alleviate any problems in a material way. Instead, the state asserts only
that the rule “materially advances New York’s interest in factual, relevant attorney
advertisements.” Defs.’ Br. at 35. The state’s “interest” in relevant advertising is
essentially a rehash of its argument that “irrelevant” speech is not protected by the
First Amendment and should be rejected for the same reasons.
The state attempts to rely on the task-force report in support of this rule,
contending that the task force “explained that its proposed rule barring false,
deceptive or misleading communications could also reach puffery” and
unverifiable claims. Id. But the report does not say what the state claims it says; in
fact, the cited portion is part of the commentary to the proposed amendments that
encourages lawyers to “strive” not to put “undue emphasis on style and advertising
47
strategems.” A. 146. Not only are the comments purely advisory, they specifically
provide that “puffery and claims that cannot be measured or verified” are
prohibited only “to the extent that they are false, deceptive or misleading.” Id. The
comments also state:
Questions of effectiveness and taste in advertising are matters of
speculation and subjective judgment. Some jurisdictions have
imposed extensive restrictions on . . . advertising going beyond
specified facts about a lawyer or on “undignified” advertising. . . .
Limiting the information that may be advertised . . . assumes that the
bar can accurately forecast the kind of information that the public
would regard as relevant.
A. 145.
The state also points to the task force’s adoption of the Monroe County Bar
Association’s Guidelines, which provide that “all information should be relevant to
the thoughtful selection of counsel, and devices such as puffery . . . should be
minimized.” A. 124 (emphasis added). But once again, these guidelines are
explicitly aspirational in nature, and are framed as “broad principles” that are not
intended to “alter the effect” of the rules. A. 122-23. Moreover, as the district court
observed, the guidelines explicitly allow attention-getting devices; they just advise
lawyers to minimize them. A. 124.
2.
The Prohibition on Nicknames, Monikers, Mottos, and
Trade Names
In support of its prohibition on nicknames, monikers, mottos, and trade
names, the state argues that a separate provision of the rules prohibited lawyers
48
from using trade names even before the recent amendments, and that the
challenged rule “therefore directly and materially advances New York’s interest in
furthering this longstanding policy.” Defs.’ Br. at 37. A “longstanding policy,”
however, is not the same as an interest, and there is no evidence in the record here
explaining what important state interest is served by the ban on trade names.
Instead of presenting evidence in support of its policy, the state notes only that the
task-force report “alluded” to the existing prohibition on trade names and “noted
their potentially misleading nature in its commentary.” A. 37-38. That is true, but
the task-force report does not recommend changes to the rule against trade names
and provides no evidence that they are misleading.
In the absence of factual support, the state relies on Friedman v. Rogers, 440
U.S. 1 (1979), to advocate a per se rule that trade name restrictions are always
constitutional. Friedman, however, was decided before the Supreme Court had
formulated its standard of review for restrictions on commercial speech in Central
Hudson, and therefore is of limited value today. See Bad Frog Brewery, 134 F.3d
at 96-97 (noting that Supreme Court doctrinal developments have undermined the
holding in Friedman); Michel v. Bare, 230 F. Supp. 2d 1147, 1150 (D. Nev. 2002)
(striking down a restriction on attorney trade names, and noting that Friedman
appears to allow greater regulation of trade names than would be allowed by
Central Hudson). Courts now recognize that trade names are entitled to First
49
Amendment protection. See Piazza’s Seafood World, LLC v. Odom, 448 F.3d 744,
753 (5th Cir. 2006); Bad Frog Brewery, 134 F.3d at 97; Sambo’s Restaurants v.
Ann Arbor, 663 F.2d 686, 694 (6th Cir. 1981); ACLU v. Miller, 977 F. Supp. 1228,
1233 (N.D. Ga. 1997).
Even assuming that Friedman is still good law, it does not sanction the sort
of limitless prohibition on trade names that the state attempts to draw from it.
Friedman relied on the legislative record developed by the state showing that
optometrists were deceiving consumers by, among other things, operating under
names other than their own. Friedman, 440 U.S. at 13-14. Thus, the Court held that
the state’s interest was not “speculative or hypothetical,” but “substantial and well
demonstrated.” Id. at 14-15. The Court did not hold that states are free to ban all
trade names under any circumstances, even in the absence of evidence of a
demonstrated need for such restrictions. See Michel, 230 F. Supp. 2d at 1150-51
(detailing the evidence in Friedman and noting that the state had not produced
similar evidence); Pete’s Brewing Co. v. Whitehead, 19 F. Supp. 2d 1004, 1013 n.7
(W.D. Mo. 1998) (noting that Friedman relied on “compelling” evidence and never
held that all trade names are inherently deceptive).
Finally, even if trade names could be constitutionally prohibited in New
York, Friedman gives no support for the state’s decision also to prohibit
nicknames, monikers, and mottos. Alexander & Catalano’s motto, “the heavy
50
hitters,” is always displayed alongside the firm’s name, so there is no risk that
consumers will become confused about who is providing the firm’s services. The
New York Appellate Division recognized this important point in dismissing
disciplinary charges against a lawyer for using the motto “The Country Lawyer.”
In re Von Wiegen, 63 N.Y.2d 163, 176-177 (N.Y. 1984). The court held that “[t]he
purpose of the prohibition against trade names . . . is to prevent the public from
being deceived about the identity, responsibility and status of those who use the
name.” Id. at 841. Because the motto at issue always appeared alongside the name
of the lawyer’s firm, the court reasoned that “[t]he use of the motto ‘The Country
Lawyer’ did not deceive in that way.” Id.
3.
The Prohibition on Depiction of Judges
In support of its restriction on the depiction of judges, the state refers to a
portion of the task-force report stating that advertisements should not state or
imply an improper influence over a court. A. 39. Plaintiffs agree that
advertisements meeting that description could be prohibited. However, the state’s
conclusion that depictions of judges could also be prohibited is a non sequitur. At
most, the state’s contention satisfies the first prong of the Central Hudson test by
articulating a valid state interest. The state has not shown, however, how its chosen
regulation materially furthers that interest.
51
There is no reason to believe that consumers seeing a depiction of a judge
will draw the conclusion that the advertising lawyer can or would exert an
improper influence on a judge. The state has not brought forward even a single
example of an ad that is misleading in this way, nor has it provided evidence that
any consumer has ever been confused by a depiction of a judge. Alexander &
Catalano’s commercial portraying a judge is not even arguably deceptive in this
way. A. 224. To the contrary, the commercial states that the judge is there to
“ensure the trial is fair.” Id. No reasonable consumer would conclude from the ad
that the firm was implying improper influence over the judge.
At most, the restriction is a prophylactic rule designed to protect against
hypothetical cases of abuse. Although broad prophylactic rules may be easier to
administer than narrowly tailored ones, the state may not broadly suppress truthful
advertising “merely to spare itself the trouble of distinguishing such advertising
from false or deceptive advertising.” Zauderer, 471 U.S. at 646. If the state
encounters a misleading image of a judge, the state can prohibit it under its rules
against false and misleading advertising. It may not, however, ban all images of
judges on the ground that it might one day encounter a misleading image.
4.
The Prohibition on Client Testimonials
To justify its prohibition on client testimonials, the state asserts the “need to
preserve the integrity of the attorney-client relationship.” Defs.’ Br. at 39. This
52
justification for the rule is new on appeal, and, below, the state never defended this
provision or described the justification for its adoption. In any case, the state has
no evidence in support of its assertion that such client testimonials will cause the
predicted harm. The state’s reasoning is apparently that a client might feel undue
pressure to agree to give a testimonial, but there is no reason to believe that this
kind of pressure is or has ever has been a problem in New York. Even before the
amended rules were adopted, lawyers in the state were bound by a variety of rules
that prohibited conflicts of interest, including a provision that “a lawyer shall not
accept or continue employment if the exercise of professional judgment on behalf
of the client will or reasonably may be affected.” 22 N.Y.C.R.R. § 1200.20. Yet,
the state has not presented any cases where a lawyer was disciplined for applying
undue pressure to clients in a way that would violate the rule.
Moreover, if the state’s newly asserted interest in protecting the attorneyclient relationship is the real reason for its rule, its chosen restriction makes little
sense. Other aspects of the lawful advertising rules generally assume that current
clients need less protection from their own lawyers. Thus, the rules against
advertising and solicitation practices do not apply to communications with existing
clients. § 1200.6(a). In addition, the rule is dramatically underinclusive for
accomplishing the state’s asserted purpose. Because the prohibition applies only to
testimonials “with respect to a matter still pending,” current clients under the rule
53
could still, under the state’s theory, be pressured into giving a testimonial related to
a past case, or even to give a general testimonial about the lawyer’s quality. See
Bad Frog Brewery, 134 F.3d at 98 (noting that a rule’s underinclusiveness is a
relevant factor in determining whether a regulation materially advances the state’s
interest).
C.
The Rules Are Not Narrowly Drawn.
In attempting to satisfy its burden on the final Central Hudson prong, the
state argues only that the fit between its interest and the regulations “need not be
perfect,” citing Board of Trustees v. Fox, 492 U.S. 469 (1989). The state has to
show, however, that the rules’ “scope is in proportion to the interest served” and
that the rules are “narrowly tailored to achieve the desired objective.” Id. at 480
(internal quotation marks omitted). Moreover, the state must make this showing
with actual evidence. Shaffer, 27 F.3d at 844 (striking down a restriction on
commercial speech in light of the state’s “failure to determine empirically whether
less restrictive measures . . . would provide an alternative means for effectively
combating” the purported harm). Here, the state has not even attempted to show
that its interests cannot be served by the readily available, less restrictive
alternatives suggested by the task-force report.
1.
The Rules Are Vastly Overbroad.
To survive the final prong of the Central Hudson test, a restriction on
54
allegedly deceptive speech must not be “broader than reasonably necessary to
prevent the deception.” RMJ, 455 U.S. at 203. As previously discussed, the
amended rules sweep in almost all common advertising techniques, most of which
are not false or misleading, nor even likely to be distasteful to any consumer. The
state argues that the rules are nonetheless sufficiently narrow because they “allow
attorneys to advertise on a wide range of topics.” Defs.’ Resp. Br. at 41. It is not,
however, a justification for restrictions on speech that the state will permit the
restricted speaker to say other things. The question is not whether the speaker is
gagged completely, but whether the government has achieved its goals in a narrow
manner. The state has made no attempt to do so.
2.
The State Has Ignored Readily Available Alternatives to
Address Its Alleged Interests.
Although it attempts to rely on the task-force report in support of its rules,
the state ignores the actual recommendations of the task force, which would have
accomplished the state’s goals with less impairment of speech. First, the task force
recommended that the state could simply enforce the existing prohibition against
false and misleading advertising in 22 N.Y.C.R.R. § 1200.6(a) instead of enacting
new content-based restrictions on speech. A. 56, 59, 70, 100-102, 133-35. Second,
the task force suggested that the state could impose filing requirements that would
allow it to review individual advertisements for false and misleading statements. A.
133-35. Third, it suggested that the state could impose disclosure or disclaimer
55
requirements to clarify speech that would otherwise be misleading. A. 56. Finally,
the task force suggested that the state could educate the public about what qualities
it should consider in choosing an attorney. A. 57-58, 60. The state has not provided
any reasons or evidence justifying its decision not to adopt the state bar’s
recommendations and to instead formulate its own content-based restrictions on
speech. The state has therefore failed to meet its burden of showing that such
means would not suffice to satisfy its purported interests.
III.
The Thirty-Day Moratorium on Communications to Potential Clients in
Personal Injury and Wrongful Death Cases Is Unconstitutional.
Sections 1200.8(g) and 1200.41-a of the rules impose a blackout on all
communications by lawyers to consumers with personal injury or wrongful death
claims for thirty days after the incident giving rise to the injury. Like the other
restrictions at issue in this case, these rules are not supported by any evidence and
thus cannot survive the fact-bound Central Hudson test. Unlike the other
restrictions, however, the district court decided to uphold the constitutionality of
the thirty-day moratorium. The district court’s decision on this issue was wrong.11
11
New York actually adopted two separate thirty-day moratorium rules that,
although worded slightly differently, appear on their face to be very similar. The
main substantive difference between the two rules, and the only plausible
justification for the duplication, was that § 1200.8(g) is limited to advertisements
where a primary purpose of the advertising lawyer is to make a profit, while
§ 1200.41-a applies to all communications, including nonprofit communications,
between a lawyer and a potential client. To save the rule from unconstitutionality,
56
A.
The State Has Not Shown a Need for the Moratorium Rule.
In the district court, the state explained its need for a thirty-day moratorium
solely based on the Supreme Court’s holding in Florida Bar v. Went For It, which
upheld a thirty-day restriction on direct-mail solicitations to injured consumers in
Florida based on the Court’s conclusion that the state had a legitimate interest in
protecting the privacy of Florida residents and the sanctity of their homes from
unsolicited direct mailings. 515 U.S. 618. However, Went For It not only fails to
establish a similar state interest in the context of this case, it actually mandates the
opposite result here.
Went For It specifically limited its holding to “targeted direct-mail
solicitations to victims and their relatives.” Id. at 620. As the district court
concluded in this case, however, the rules here are much broader, prohibiting
lawyers from communicating by any means with specific injured people or groups
of injured people for purposes of informing them of their legal rights or the
availability of legal representation. A. 249 n.15. The rule thus prohibits not only inperson, telephone, and direct-mail solicitations, but also advertisements on radio,
television, and the Internet that do not intrude on the privacy of consumers. A. 248-
however, the district court read § 1200.41-a as implicitly adopting a profit-motive
standard. A. 252-54. As a result of the district court’s ruling, which plaintiffs do
not appeal here, the rules are now substantively identical, and will therefore be
treated together for purposes of this analysis.
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49 n.15 (“The moratorium provisions in this case extend by their plain language to
television, radio, newspaper, and website solicitations that are directed to or
targeted at a specific client”). For example, a law firm that wished to set up a web
page stating its willingness to assist consumers injured by a particular product or in
a particular disaster would be blocked from doing so during the thirty-day period.
Moreover, if different people were injured by a product at different times, an
advertisement addressed to those injured consumers would never be allowable
because it could always be viewed by an injured person within thirty days of that
person’s injury.
Unlike direct-mail advertisements, advertisements that are not delivered to a
specific consumer “involve[] no willful or knowing affront to or invasion of the
tranquility of bereaved or injured individuals”—the harms that concerned the
Supreme Court in Went For It. 515 U.S. at 630. Even if considered by some
consumers to be in poor taste, these sorts of ads “can hardly be said to have
invaded the privacy of those who [receive them].” Zauderer, 471 U.S. at 642.
Those who do disapprove of the ads can “effectively avoid further bombardment of
[their] sensibilities simply by averting [their] eyes,” Shapero, 486 U.S. at 475-76
(internal quotation marks omitted), or, in the case of television ads, by changing
the channel.
Prohibiting this form of advertising therefore serves no state interest other
58
than an illegitimate and paternalistic interest in protecting consumers from being
offended. Id. at 630; see also id. at 631 n.2 (“There is an obvious difference
between situations in which the government acts in its own interests, or on behalf
of entities it regulates, and situations in which the government is motivated
primarily by paternalism.”). And the task force’s proposed rules make clear that
this was in fact the state’s interest. In explaining the purpose of the rule, the task
force’s commentary provides only one explanation for the decision to prohibit
communications to all accident victims in the state: “the unseemly conduct of a
few attorneys.” A. 5.12
B.
The State’s Restriction Will Not Mitigate the Purported Harm.
In upholding Florida’s restriction on direct-mail solicitations, the Supreme
Court in Went For It relied on the strength of extensive evidence accumulated by
the state of Florida showing that consumers there viewed direct-mail solicitations
following an injury to be an egregious violation of their privacy and an invasion
into the sanctity of their homes. Went For It, 515 U.S. at 626-27. The Court
pointedly contrasted the state’s evidence with the situation in Edenfield, where the
Court had struck down regulations that were supported by “no studies.” Id. at 626.
12
The amicus curiae brief of the New York State Bar Association confuses
this point, arguing (at 5) that the moratorium serves the state’s interest in
“preventing the unwanted intrusion into the privacy of victims following a personal
injury or wrongful death of a loved one.” The bar does not explain how forms of
communication such as Internet websites are capable of “intruding” anywhere.
59
Like the defendants in Edenfield, the state here has submitted no empirical
evidence of any kind in support of its rule and, for that reason alone, the rule is
unconstitutional.
The state argued in the district court that to satisfy its evidentiary burden it
should be permitted to utilize Florida’s factual findings that were held to be
sufficient in Went For It. But the state did not rely on the Went For It study in
enacting its restrictions, and the study is accordingly nowhere in the record.
Compare Chambers v. Stengel, 256 F.3d 397 (6th Cir. 2001) (upholding a thirtyday restriction on direct mail based not only on the Went For It study, which the
state put in the record, but also additional evidence, including statistical and survey
evidence, demonstrating the need for the rule in the state). Even if the state could
rely on evidence referenced by a Supreme Court decision in support of a rule that
is identical to the rule the Court upheld, the state cannot support an entirely
different and much broader rule with evidence that is not in the record, that
involves another state, and that is more than a decade old and therefore does not
reflect consumers’ growing familiarity with lawyer advertising over the past ten
years.
The state also argues that it is entitled to rely on a “consensus” of other
states that have enacted similar rules. Defs.’ Br. at 31. The state’s claim of a
consensus, however, is seriously undermined by the fact that it identifies only ten
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states, including New York, that have adopted any sort of moratorium rule. Onefifth is not a consensus, and even those states that have enacted moratorium rules
have generally limited them, like the rule in Went For It, to targeted direct-mail
solicitations. In any case, the rules of other states cannot justify a rule if the rules
of those states are also unconstitutional.
Although the point was not advanced by the state in the district court, the
court on its own initiative also concluded that the task force’s findings
demonstrated a substantial interest in the moratorium rule. The court found
relevant a passage of the opinion stating that “the Committee believed the cooling
off requirement would be beneficial in removing a source of annoyance and
offense to those already troubled by an accident or similar occurrence.” A. 249.
Plaintiffs do not doubt that the committee members held this belief. However,
because neither the committee nor the state relied on any actual evidence in
formulating this opinion, the rule cannot survive scrutiny under the Central
Hudson test. The task force’s study of these states’ advertising did not gather or
analyze the evidence—if any—accumulated by those states in formulating their
rules. Instead, the task force’s analysis was limited to determining whether states
with those rules had “fac[ed] constitutional challenges.” A. 115. The committee’s
work on this issue was therefore not an empirical review of evidence so much as
legal research.
61
Finally, the district court relied in support of the rule on the Aviation
Disaster Family Assistance Act, 49 U.S.C. § 1136, a federal statute that prohibits
solicitation of a plane crash victim’s family for thirty days following the crash. A.
61. In referencing this statute, the task force referenced a congressional report
about “concerns” with “overzealous attorneys” contacting victims following a
plane crash. A. 62. Because the report is not in evidence, the record does not
indicate what Congress’s concerns were or whether those concerns are relevant to
this case. Regardless, even if the state could rely on an offhand reference to a
report not in evidence to justify a restriction on speech, the report would not be
relevant because the federal law is substantially narrower than the rule challenged
here. First, the federal law is focused on the impact of attorneys following mass
disasters, not personal injuries. Although the task force considered adopting a
moratorium that was limited in the same way, it instead “came to a different
conclusion” in adopting a rule encompassing all personal injuries. A. 61. Second,
the federal law restricts only communications “to” a victim or family member of a
mass disaster, which effectively covers only direct-mail, phone calls, face-to-face,
and similar communications. See A. 61-62. New York’s rule, on the other hand,
prohibits communications that are “directed to, or targeted at, a specific recipient
or group of recipients,” and thus includes even general advertisements in the mass
media as long as the lawyer has a specific target group in mind. The district court
62
was thus wrong to conclude that the federal statute was identical to or provided
support for New York’s rule.
Even if the federal statute and other state rules were on point, that would not
make the rule here any more constitutional. The state has not shown that these
other restrictions were adopted based on actual evidence, or that it relied on that
evidence in enacting its own restrictions. It has therefore failed to meet its burden
under Central Hudson.
C.
The Rule Is Not Narrowly Drawn.
Finally, the rule adopted by the state is not narrowly tailored toward the
state’s intended objective. The Court in Went For It described the moratorium at
issue in that case as “narrow,” emphasizing the “other ways for injured Floridians
to learn about the availability of legal representation” that remained available
during the thirty-day blackout period. Id. at 620, 633. Here, however, the rules
restrict even alternative sources of information—the “other ways” referred to in
Went For It—leaving attorneys completely unable to communicate to specific
injured consumers or groups of consumers, at least unless the consumers
specifically request that information from the attorney.
The state interest upheld in Went For It therefore does not justify restrictions
on forms of communication—such as websites and television ads—that do not
intrude on the privacy of consumers. See 44 Liquormart, Inc. v. Rhode Island, 517
63
U.S. 484 (1996) (“[L]ast Term we upheld a 30-day prohibition against a certain
form of legal solicitation largely because it left so many channels of
communication open to Florida lawyers.”). Even Florida, the state whose
moratorium rule was upheld by the Supreme Court, recognizes the difference
between websites and direct-mail solicitations, noting that “a lawyer’s Internet web
site is accessed by the viewer upon the viewer’s initiative,” and thus classifying
websites as solicited, rather than unsolicited communications. See Amendments to
Rules Regulating the Florida Bar, 762 So. 2d 392, 426 (Fla. 1999).13
To be sure, the district court was correct that attorneys may still advertise
generally during the thirty-day period, so long as they don’t tailor the ads toward
any specific target audience of personal injury victims. That is not, however, an
“alternative channel[] for the dissemination of information”—as the district court
held. It is an alternative message that the state seeks to substitute for the lawyer’s
preferred message. Under the rules, attorneys are prohibited from advertising in
any media within the thirty-day period to inform injured consumers that they are
available and willing to take a particular claim. The state has given no reason for
denying consumers access to this information and relegating them instead to a
13
The state bar’s amicus brief thus gives too much weight to Went For It
when it argues (at 11) that the distinction between a ban on direct mail and a ban
on all communications “is a distinction without a difference.” As the Supreme
Court has stressed, when assessing restrictions on attorney solicitations, “the mode
of communication makes all the difference.” Shapero, 486 U.S. at 475.
64
random search through the phone book.
CONCLUSION
The district court’s grant of partial summary judgment to plaintiffs should be
affirmed. The district court’s grant of partial summary judgment to defendants on
the issue of the thirty-day moratorium should be reversed and remanded with
instructions to enter judgment for the plaintiffs on that issue.
Respectfully submitted,
/s/Gregory A. Beck
Gregory A. Beck
Brian Wolfman
Public Citizen Litigation Group
1600 20th Street NW
Washington, DC 20009
Phone: (202) 588-1000
Fax: (202) 588-7795
Email: [email protected]
[email protected]
Counsel for Plaintiffs
65
CERTIFICATE OF COMPLIANCE
This brief complies with the type-volume limitation of Federal Rule of
Appellate Procedure 28.1(e)(2)(A). The brief is composed in a fourteen-point
proportional typeface, Times New Roman. As calculated by my word processing
software (Microsoft Word 2002), the brief contains 15,968 words, excluding the
parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
/s/Gregory A. Beck
Gregory A. Beck
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CERTIFICATE OF SERVICE
I certify that on February 1, 2008, I caused the original and ten copies of this
brief to be sent by first-class U.S. Mail to the Clerk of the Court, and two copies to
be sent by first-class mail to the following:
Owen Demuth
Assistant Solicitor General
Office of the New York State Attorney General
The Capitol
Albany, N.Y. 12224
Counsel for Appellants
/s/Gregory A. Beck
Gregory A. Beck
67